109 A. 859 | Conn. | 1920
The jury must have found, since the facts were undisputed, that the plaintiff was a young, active and intelligent man of twenty-two years of age, and in good health on June 27th, 1917, and that on this day he sustained, as a result of the collision complained of, a serious compound fracture of the tibia, and up to the time of trial, February 6th, 1919, had undergone two serious surgical operations, but the fractured bone had not yet united. Further surgical operation will be necessary, and it will be necessary for him to wear a brace for a considerable period, and he can never wholly recover nor become more than ninety per cent efficient on account of his injury. As a consequence of this injury he has suffered great pain, was still suffering pain at the time of trial, and will continue to do so for some time. He has expended $500 for medical and surgical care and attention, and his loss of earnings amount to substantially $1,000.
Plaintiff first moved that the verdict be set aside and a new trial granted, on the ground that the verdict was against the evidence. Subsequently he amended his motion, by substituting in place of it a motion to set aside the verdict "so far as the same relates to the award of damages . . . for the reason that said verdict was against the evidence . . . in that the damages awarded to the plaintiff were inadequate." In denying the motion, the trial court said: "It seems manifest to me that the verdict in this case was a compromise one, but whether justifiable is a matter of grave doubt. . . . While such a compromise could not be justified, I think it would be equally unjustifiable *505 for me to grant a new trial on the question of damages alone, with the issue of liability closed against the defendant, as asked for by the plaintiff."
General Statutes, § 5840, gives to the plaintiff an appeal from the denial of his motion. This section provides that upon appeal if this court "shall be of opinion that the verdict was against such evidence, it shall grant a new trial." The only motion for a new trial known to our practice is the motion for a trialde novo. Section 5840 provides the only appeal from the denial of such motion.
The first motion filed in this case was a motion for a new trial on the ground that the verdict was against the evidence. The substituted motion, from the denial of which this appeal was taken, is a motion for a new trial setting aside the verdict so far as the same relates to the award of damages, but enforcing its determination of the defendant's liability.
Prior to 1807 the verdict of a jury was conclusive, and a new trial would not be granted on the ground that the verdict was against the law or against the evidence. In that year the rule that the court should direct the jury in matters of law was adopted, and the practice of granting new trials because the verdict was against the law began. 3 Day, 29. In 1816 it was first determined that a new trial might be granted on the ground that the verdict was against the evidence.Bartholomew v. Clark,
A study of this statutory development reinforces the conclusion that they were enacted with reference to the usual motion for a trial de novo, and do not provide a method of enforcing the verdict as to liability and setting it aside as to damages. Proceedings for procuring new trials are in this State governed by statute.Etchells v. Wainwright,
In the exercise of its legal discretion this court not infrequently sets aside a verdict and orders a new trial unless the damages awarded be remitted in part;Holcomb Co. v. Clark,
We agree with the Supreme Court of Massachusetts, that judicial discretion in this class of cases should be exercised with great caution, and that "it is only in exceptional and extremely rare instances that the inadequacy of damages will not be so interwoven with liability that justice can be done without a new trial upon the whole case." Simmons v. Fish,
The trial court may restrict the new trial to a given issue or issues, and on appeal we may exercise a like discretion. But an order for the restriction of the issues will never be made unless the court can clearly see that this is the way of doing justice in that case. The vesting in a court of such a discretion is a very different matter from according to a litigant the right of asking that a new trial be so limited. A litigant should not be able to select for rehearing the issue decided adversely to him, and retain those issues decided in his favor. As a rule the issues are interwoven, and may not be separated without injustice to one of the parties. The practical difficulty of a rehearing before a new jury, for example, of the issue of damages, while retaining the decision of the first jury upon the issue of liability, is apparent. Usually these issues will be inextricable, interwoven. If the verdict be a compromise one, that is, one where some of the jurors have conceded liability against their judgment, and some have reduced their estimate of the damages in order to secure an agreement of liability *509
with their fellow jurors, a new trial confined to the single issues of damage will be a serious injustice to the defendant. He has never had the issue of liability determined by the conscientious conviction of all of the jury; and that he is entitled to have. Further, "a verdict which is reached only by the surrender of conscientious convictions upon one material issue by some jurors in return for a relinquishment by others of their like settled opinion upon another issue and the result is one which does not command the approval of the whole panel, is a compromise verdict founded upon conduct subversive of the soundness of trial by jury." Simmons v. Fish,
The trial court properly denied the qualified motion for a new trial.
There is no error.
In this opinion the other judges concurred.